Tuesday, April 19, 2011

Hazare and the Potential Curing of a Democratic Deficit?

Tarunabh captured some of the reactions to the Anna Hazare campaign in his post here, where he also warned that the problem of corruption is a complex multi-factorial issue, not easily amenable to ready solutions via yet another legal parchment.

In this TOI (Crest edn) piece, I reflect on how the Hazare agitation presents an opportunity to push for an opening up of the law/policy making process. Since the online version of the piece can be accessed only after your register (freely) on the TOI site, I'm reproducing it below:

"It fell several notches short of a Tahrir square. But it was enough to capture the imagination of nation, a nation that has witnessed scam after scam in the recent past, and where, attempt after attempt to introduce an anti-corruption law failed for four long and continuous decades.

Indeed, thanks to a man who threatened to take his own life, "Lokpal", a term that might have had raised eyebrows till a month ago, has now gained common currency. Some see the man as an enlightened saviour of sorts. Others as a dangerous blackmailer at the brink of subverting a precious democratic process that many believe we enjoy in India. I come neither to praise Anna Hazare nor to bury him. But to simply point to an enormous opportunity that his act of starving presents for us as a country.

That Hazare gained enormous public support by threatening to sacrifice his own life at the altar of an anti-corruption principle that he staunchly believes in is beyond doubt. However, what of the implementation of this principle through the technicality of a law? It's a fair guess that many of those who came out in support through rallies and candle light processions would have failed to read the bill, be it the government "Lok Pal" version or any of the many civil society "Jan Lok Pal" versions.

It is this participatory deficit that the Hazare movement must seek to redress. It must leverage the popular sentiment it has thus far gained by actively encouraging the public to participate in the law-making process. That government laws are drafted in secret for the most part is no new revelation. Even at the stage of parliamentary scrutiny, most intensively felt during the myriad "sittings" of standing committees, the ones consulted are a select few;not the public and in most cases, not those with subject matter expertise.

To this extent, law and policy-making processes in this country suffer from a serious democratic deficit. Granted that the formal processes (such as the act of voting by elected representatives, many of whom may have never read beyond the title of the bills presented) are all complied with, but substantively, the process is a largely non-deliberative one, with bills being presented and voted upon, for and at the behest of a select few.

Apparent government efforts to instill public participation are far from optimal. Many a time, bills are never released for public views or participation. And even when they are, the websites that call for participation are far from welcoming. The Indian "Bayh Dole" bill, seeking to regulate the management of intellectual property at universities, is an excellent example of the sheer deficit in the process. A law firm with very close ties to the government was tasked with drafting the bill. It borrowed significantly from a US legislation on the same theme, sans any consideration of the techno-cultural specifities of India, and even more problematically, sans any consultation with key stakeholders, namely universities and public-funded research institutions.

The bill was then secretly peddled between different ministries. After much public hue and cry, the bill was made available on a government website, but with no indication that public comments were welcome, and after four years since the first draft of the bill. Subsequently, even at the stage of parliamentary review by a standing committee, it was not until the Indian Institute of Science went to the press claiming that it was never consulted, that the committee relented and called for wider stakeholder participation. Thanks to this participation, the committee was able to appreciate that the bill was fundamentally flawed. It therefore directed the government to make extensive changes to the bill. By this time, five years had elapsed and the government was forced to go back to the drawing board. A process that fostered wider consultation earlier on in the lawmaking process would have saved us all this wasted time and effort.

Given this backdrop, the moral success of the Hazare agitation throws up an excellent opportunity to open up this closed law-making process and to pave the way for more deliberative discussions. Unfortunately, the Hazare movement has come across as controlled by a select few who wish to replace the government coterie with their own. Further, several discordant notes have already been struck by the various statements by Hazare, his lieutenants and others that he chose to share stage with. Little wonder then that the movement has attracted the ire of many who are suspicious of the threat to our democratic process.

Questionable as their means are, Hazare and club have broken new ground by gaining admission to a closed-door law making process. It would be a travesty if they now replicated the hegemony they seek to challenge. They must now leverage the moral capital gained so far and translate it to a call for wider and more informed public policy and law making. This must involve not just educating and sensitising the public, but also our ministers and parliamentarians.

For, in the allegedly selfless act of starvation by an endangered Gandhian species lies the hidden potential to begin the slow process of transformation from a largely formal democracy to a more substantive and participatory one."

7 comments:

Kanishka said...

Largely agree with the post, with a slight concern about your seeming neutrality (perhaps subtle support?) re: the conduct of the movement. I suspect this will be partly unleashing the barrage of opinions that Tarunabh's post below was starting to elicit, but I think it is a fundamental concern when addressing the (broadly) agreeable and significant end of a more substantive and participatory model of democracy. Here are some admittedly tentative concerns which I think merit some discussion, even if for the end of a sound burial:

The movement appears to me to have transcended what I perceive to be the lines of legitimate as well as prudent participation.

In particular, your distinction in light of Tarunabh's note between 'contempt for the principles of politics' and 'contempt for the practice of politics' doesn't really appear to hold up in the Hazare case. As I've tried to get at here in a very informal manner ( http://kanishkanarayan.wordpress.com/2011/04/10/concerns-about-the-anna-hazare-movement-a-case-for-humility/ ), there is something unappealing (for me, at least) in the very conduct of the movement, even if one abstracts from the contents of the suggested bill. Neera Chandoke doesn't seem to find anything troubling about the conduct, but I suspect Pratap Mehta does. It just seems to me that on an issue of this sort, i.e. one where disagreement on specifics is deep and widely acknowledged, the movement's intransigence displays a near-contempt for the very principle of politics. I suspect this line is, at least partly, motivated by a sense of intuitive discomfort with the hunger fast on this specific issue (which is not to castigate hunger fasts altogether).

Pre-empting the (maybe understandable) claim about hunger fasts being steeped in our political culture, Gandhi, etc. I've had a go at narrowing the net to only include in my criticism hunger fasts which are (a) on issues where specifics are subject to deep disagreement (b) specific in their demands despite that disagreement (c) intransigent (which all hunger fasts tied to some public standing of moral eminence are).

Very much open to charges of political naivety. But I'd be interested in hearing especially your thoughts on the possibility of a useful, feasible distinction between legislative influence and deliberation, on the one hand, and appropriation of decision-making ability, on the other.

Tarunabh Khaitan said...

thanks for this Shamnad. this, surely, is the right way to respond - by reducing democratic deficit rather than increasing it. it is a completely different and constructive approach from the contemptuous dismissal of democratic politics that has been evident among some of the supporters of Hazare over the last week or so.

the argument you make is exactly the kind of argument i am currently working on for a longer journal piece and will hopefully get around to post it here soon.

Tarunabh Khaitan said...

Kanishka, I have been supervising a comparative report on how some other democracies facilitate public participation in the legislative process. i believe there are some lessons for india in the practices in countries like south africa. will post a link on the blog as soon as the report is published. watch this space.

Shamnad Basheer said...

Thanks Kanishka,

Interesting points. Appropriation of decision making? Can you elaborate a bit more? For one, this assumes that the current framework around law/policy making is a good and optimal one.

As you're no doubt aware, drafting of the bill is merely the first stage. several stages to follow before the people's reps actually vote on it. and its these stages that must be leveraged fully for a meaningful public participation....the way i see it: prior to the movement, many of us were unlikely to have participated in a debate on this theme....post the agitation, we have almost everyone now with a view on lok pal...and one part of policy making process opened up, albeit to a select group...but opened up nonetheless beyond the confines of a select government coterie... a result that is a bit more optimal than what might have prevailed otherwise....

Shamnad Basheer said...

Thanks Tarunabh,

Terrific that you are working on a scholarly piece on this theme...its an area that is understudied and under-theorised in India. So greatly look forward to it..

Kanishka said...

That the focus on corruption (and the bill) brought about by the entire affair is positive is agreed upon.I just find it difficult to make the sort of second-best judgement about this being 'a bit more optimal' - I guess I'm just voicing the doubts about questionable means and prospective threats to democratic process that you alluded to. In judging the optimality of one solution, surely other solutions (other ways of bringing about said focus on corruption that sidestep the problems in this movement) are more relevant comparisons of optimality than the original problematic situation.

On appropriation - I guess this was a relatively minor reference to the coerced conception and the precise content of the extraordinary notification on the committee's formation. The status and import of notifications is uncertain territory for me - but I sense an intuitive discomfort with it. Doesn't really betray signs of an inclusive stance - political prudence, perhaps.

I'd be interested in Tarunabh's eventual report - the NAC and this raise interesting and significant questions on the proper institutionalisation of external, wide influence on the legislative process. Underplaying the significance of initial drafting by select groups through pointing to subsequent rounds of discussion doesn't seem entirely satisfactory. (maybe this is more prevalent that I know - I'm unsure on the extent to which the drafting process already gets 'outsourced', although your example of the 'Bayh Dole' bill seems to suggest a surprising, perhaps disturbing, level of frequency.)

Shamnad Basheer said...

Kanishka,

Of course, the process could have been much better. But I think its fairly clear that the outcome now is better than what might have prevailed. Not sure if you're aware of the history of this bill. The government version was a fairly toothless version (surprisingly, nobody speaks about the govt version anymore....but you must take a look at it...its a classic piece of redundancy!) and without this agitation, my guess is that that bill would have at least been the bill that would have been introduced in Parliament. to that extent, having more inputs into the very drafting of bill is a more optimal outcome (relatively).